Friday, May 14, 2010

I am still reading up on Kagan myself. It's a bit difficult for me to stay fully informed while the last term of my junior year of college is winding down. However, Melissa at Shakesville wrote an informative post before the nomination was official, and here's a link about some of the lesbian rumors that have been coming up around her nomination. If you have any additional links that might provide other useful information about Kagan's nomination, feel free to leave them in comments.

So, while I admit that I am still in the process of learning about Kagan, one thing I can comment on is Bill O'Reilly assertion that knowing the sexual orientation of a nominee to the U. S. Supreme Court is important to the American public. The following quote is one I found yesterday on Shakesville (the video can be found here, also via Shakesville).

"Americans have a right to know if their Supreme Court justice has an orientation that may or may not dictate which way she votes on a vital issue. … Don't Americans have a right to know, on something as important as gay marriage, all right, if there is a Supreme Court justice nominee who is in that world?" - Bill O'Reilly

My analysis of this quote goes in line with what Melissa said on her blog. The Supreme Court does not make its decisions based on the personal preferences of the justices. Yes, personal differences in political ideology among justices may impact how they interpret the Constitution when applying it to cases the Court hears, but sexual orientation has nothing to do with that.

It is also important to note that while cases that make it before the Court may end up influencing public policy (such as whether or not same-sex marriage is allowed), creating that policy is not the end of the Court. The Supreme Court is supposed to interpret the Constitution. The particulars of a case must have the backing of that document for the Justices to make a decision.

Cases heard by the Supreme Court are brought before the Court on very narrow terms, and the only job of the Court is to determine if those terms constitute a violation Constitutionally guaranteed rights. As Melissa noted, Roe v. Wade was decided not based on the fact that the justices liked abortion. It was a matter of the guarantee of privacy and due process that just so happened to make abortion legal in the United States.

And really, it's just annoying for Bill O'Reilly to make such a big deal out of the possibility that Kagan is not heterosexual. If he honestly believed it was such an important thing for the American people to know (as opposed to just a reason to put doubts about her in the minds of those people), then why does he seem unconcerned about the orientation of the other sitting justices?

*This link is to the page for the Solicitor General. While that currently means that the information here is specifically about Kagan, the information found here may no longer be relevant to this post in the future.

8 comments:

Bill also forgets that there's a sizable contingent of openly gay Republicans (the Log Cabin Republicans) that vote with the party that supports treating them as second class citizens, so obviously sexual orientation will not universally be a major influence on political positions.

If the sexual orientation of a Supreme Court Justice is important for making decisions, by that logic, the sexual orientation of lawmakers should be important also - where's the calls for statements on sexual orientation for House and Senate members?

It's so true, Lindsay, especially because his whole unfounded fear seems to be based on the idea that somehow it is the Supreme Court (as opposed to the legislative branch) that creates the laws of this land. Ummm...

Well I think what he's worried about is if a gay-rights case comes before the Supreme Court, Kagan will be more likely to rule in favor of the homosexual community in America. He's afraid that this would lead to more tolerance and fair treatment. I do believe that back in the day, arguments similar to his were used by people that were against putting the first minority Justices in the Court. And remember how conservatives everywhere were up in arms about Kennedy becoming president because as a Catholic, they thought he would change everything about America?

While I think you are correct about Bill O'Reilly's thought process, what I wanted to bring attention to in this post is the fact that his understanding of how the Supreme Court operates seems a little...lacking.

First, SCOTUS does not, on its own, create laws. Its decisions do impact laws and their implementation in this country, but it is the legislative, not judicial, branch that is responsible for actually creating/mending laws.

Second, it's not as if Supreme Court Justices can just arbitrarily make decisions because they personally believe X should happen. Their duty is to interpret the Constitution, and it is this interpretation alone that may be effected by personal beliefs. The Court must be able to provide Constitutional evidence to support its decisions. Personal beliefs cannot be used to support its decisions.

Third, if the matter of same-sex marriage were brought before SCOTUS, it would be brought on specific grounds (possibly being framed in a variety of ways) and these particulars would determine the outcome of the Court's decision.

Basically, I didn't get any sort of indication that O'Reilly really understood what SCOTUS does, etc.

I've been getting some Anonymous comments (two, apparently from the same person) that I've been rejecting because they violate the comment policy. There's a line in that policy that says that telling the writer what they believe without evidence from the post will make it more likely that a comment will be rejected.

If you would like to re-phrase your comment to keep it in line with the comment policy, Anonymous, I'll be happy to reconsider.